Commonwealth v. Curtis

The defendant has taken three grounds in defence of his exceptions: He denies the validity of the by-law on which the complaint against him is founded; the sufficiency of the complaint; and the legality of the proceedings at the trial.

1. The court find nothing unwarranted in .the by-law. By the city charter of Cambridge, (St. 1846, c. 109, § 16,) the city council are authorized “ to make all such salutary and needful bylaws, as towns, by the laws of the Commonwealth, have power to make, and to annex penalties, not exceeding twenty dollars for a breach thereof.” And the defendant does not deny tht authority of towns to make by-laws to regulate the passing o1 *269cattle and other animals upon its streets and ways. See 14 Gray, 53. But he objects that the by-law in question is unreasonable, and therefore void, if it is to be so construed as to support the verdict which has been returned against him, This objection will be considered hereafter.

2. It has been argued for the defendant that the complaint ia insufficient to sustain a judgment. One suggested defect is, that it does not allege that the sidewalks therein mentioned are part of a highway. But we are of opinion that this is alleged with sufficient clearness and certainty. They are termed “ sidewalks on certain public streets in the city of Cambridge, to wit, sidewalks in Harvard Square and North Avenue.” And this description of them is a sufficient answer to another objection made to the complaint, namely, that it does not state what parti of the streets the defendant permitted swine to pass over.

It has also been argued that the complaint is bad for duplicity At the trial, the only duplicity suggested by the defendant was, that it was alleged in the complaint that he permitted swine to go upon the sidewalks of more than one public street, to wit, upon those in Harvard Square and North Avenue. But as this square and avenue were one continuous street, there was no duplicity in describing that street by the names of its different parts. It is now contended that there is duplicity in the allegation that the defendant permitted'swine “to go upon and injure ‘he sidewalks ; ” that two distinct offences are thereby charged, oecause the by-law forbids any person to permit swine, &c. under his care, “ to go upon any sidewalk in the city, or otherwise occupy, obstruct, injure or incumber any such sidewalk.” But we are of opinion that the complaint charges only one offence. The case is within the rule stated by Gaston, J., in 2 Dev. & Bat. 103, thus: “ If an offence be cumulative with respect to the acts done, although any one of the acts be sufficient to constitute the crime, the cumulative offence may be charged.” This rule has been applied in various instances. A case hardly distinguishable from this at bar is that of Regina v. Bowers, 1 Denison, 22, and 1 Car. & Kirw. 501, where under a statute prescribing a punishment for any person who should “ wilfully destroy, *270deface or injure ” a register of baptisms, &c., it was decided that a single offence only was charged in an indictment which alleged that the defendant wilfully destroyed, defaced and injured such a register. So, under our Rev. Sts. c. 126, § 20, (reenacted by Gen. Sts. c. 161, § 43,) which prescribed a punishment for every person who should “ buy, receive or aid in the concealment of any stolen money, goods or property knowing the same to have been stolen,” it was held that an indictment which alleged that the defendant did buy, receive and aid in the concealment of certain enumerated goods, knowing them to be stolen, charged only one offence. Stevens v. Commonwealth, 6 Met. 242. And where a statute provided a punishment for forging, causing to be forged or assisting in the forgery of instruments, an indictment charging a party with forging and causing to be forged, and assisting in the forgery of an instrument, charges only a single offence. Rex v. Fauntleroy, 1 Mood. C. C. 52. State v. Morton, 27 Verm. 310, 314. 3 Chit. Crim. Law, 1048. There are numerous similar decisions. See 2 Gabbett Crim. Law, 234; Commonwealth v. Hope, 22 Pick. 1; Commonwealth v. Eaton, 15 Pick. 273; Hinkle v. Commonwealth, 4 Dana, 518.

3. The exception to the admission of evidence of different and distinct acts of the swine has been disposed of by the preceding remarks. And a mere inspection of the by-law shows its purpose to be such as to preclude all pretence for the objection that evidence ought to have been confined to proof of a single entry, by the swine, upon a sidewalk on the street over which they passed through the city. And as evidence that it was impossible to drive swine through Harvard Square and North Avenue so as to prevent them from going upon the sidewalks and injuring them, and that the defendant did all that could be done to keep them therefrom, would not, for reasons presently to be given, have been of any legal avail to the defendant, his offer of such evidence was rightly rejected.

The other objection to the proceedings at the trial respects the ruling made and the instruction given as to the meaning and effect of the by-law; namely, that if the defendant voluntarily drove the swine, as alleged in the complaint, he was bound to *271prevent them, at all hazards, from doing the acts therein com plained of, and if he did not prevent them, he was liable under the complaint. It is insisted that this is an unwarranted construction of the words “ permit any swine to go upon any sidewalk ; ” that if such is their construction, the by-law is unreasonable, and therefore void. And doubtless the court have authority to declare a by-law void for unreasonableness, and refuse to enforce it. But we are of opinion that the by-law was rightly construed at the trial. _ One of the definitions of the word “ permit ” is, “ to allow by not prohibiting.” The construction, which the defendant urges the court to adopt, requires us to understand the by-law as if the word “carelessly,” or the words “ without using all preventive.care,” preceded the word “ permit.”

It has been said, in argument, that the by-law, as construed at the trial, must operate as a total prohibition of the driving of swine over the streets in the city of Cambridge in which there are sidewalks. But we should not deem a by-law unreasonable, which should, in terms, wholly prohibit the driving of a herd of swine through the streets of a compact city.

Exceptions overruled.